Whether freptovin or GMOs, controversies follow patterns

August, 2013

Eric F. Greenberg | Attorney-at-Law

Scientists have recently determined that there are 10-20 parts per million of freptovin in packaged foods. Sometimes it occurs naturally, sometimes manufacturers add freptovin-treated coatings to the packages. Either way, it's getting into our food.

FDA and the World Health Organization have studied freptovin in great detail and find no adverse health effects from it. However, freptovin was once manufactured by the Soviet Union for use as an adhesive in nuclear weapons, and a group of American organizations want to avoid ingesting it. There's an internet rumor that freptovin might actually aggravate sinus headaches, but perhaps only at higher levels than appear in food.

The group of organizations, the Freptovin Remedy Ensurance Entity (FREE), wants FDA to require food packagers to reveal on their product labels when freptovin is present in the package. That way, Americans who object to freptovin will have the choice to avoid it. FREE also wants more studies on the health effects of freptovin.

FDA objects to the idea of requiring labeling, saying there's no good reason to reveal the absence of freptovin, because it's not unsafe. And FDA is concerned that when labels loudly tout the absence of something, many consumers will think that thing is bad and is to be avoided, and, as noted, freptovin is not unsafe.

The labeling advocates say, "but at least people will know, and more information is better than less, and information gives people a choice." Besides, they say, what's wrong with a little label statement?

Food packagers and packaging makers complain that it's not always easy to know if freptovin is present, that they'll have to start testing for its presence, getting suppliers to promise it's not there, or both.

Just to clarify, there is no such thing as freptovin. I concocted the scenario above to illustrate the complexity of seemingly simple ideas like requiring labeling about a food component or characteristic. These debates reflect safety issues but also political, economic, and very practical considerations. Recent debates over what to do about BPA, acrylamide, and other issues have contained some of the elements of the freptovin story: advocates calling for labeling, disagreement about safety issues, government and industry opponents of labeling concerned that label statements will imply safety concerns, and so on. The debates about genetically modified organisms (GMOs) also echo the made-up freptovin story, particularly the discussion of whether food makers should be required to list the presence of GMOs on labels. GMOs are foods with their DNA altered artificially with genes from other organisms. Many foods in the US today are made with GMO crop ingredients.

We pick up this story in the middle-it's been an area of controversy for some years. California voters put an initiative on their ballot for November called Proposition 37, which would lead to a legal requirement for labeling of GMO ingredients in foods. How would a national or international food company make California-only labels with this additional information? Short answer is they wouldn't. It would be too expensive. Instead, they'd add the statement to the labels of their products sold everywhere. Thus a single state's law becomes national.

Separately, the U.S. Senate rejected in June a bill from Sen. Bernie Sanders (I-VT) that would have allowed states to require labels on any food or beverage containing genetically engineered ingredients.

Why do those who want labeling want labeling? Is it for simple consumer choice, that is, to allow consumers to avoid GMOs, regardless of whether they think they are unsafe in some way? Or is it to allow consumers to avoid GMOs because they do think they are unsafe? Advocates are sometimes cagey about this, pressing the choice point but not explicitly mentioning safety issues, but one senses that's their real reason.

After all, ask yourself why it's important that you exercise your right to know this information if you think it doesn't really matter for safety. I would suggest, the answer is, it's not important information unless you fear it is unsafe.

In California anyway, people's reasons are likely varied, as a reported 90% or so of people polled support the labeling initiative. Labeling is already required by law in a number of other countries.

However, FDA does not require labeling of food products made with bioengineered ingredients, essentially because they think they present no special safety concerns. In 2001, FDA issued a Draft Guidance document to help food manufacturers who want to voluntarily label their products as being made with or without the use of bioengineered ingredients.

The basis of the 2001 Draft Guidance was a policy statement issued by FDA in 1992, which did not require special labeling for bioengineered foods and which said that FDA did not find that bioengineered foods differed from traditionally grown foods in any meaningful or uniform way, or that they presented new or greater safety concern than their traditionally grown counterparts. It's easy to predict that there will be further developments over the GMO labeling controversy in coming months, especially in California if it passes that ballot proposition. The battle cry might be over labeling, but the sometimes unspoken motivation is a controversy about the safety of the foods. The debate sounds like freptovin all over again. PW

Usually packages are filled that way for good, and lawful, reasons

Eric F. Greenberg Attorney-at-LawNovember, 2017
Accusations that packages contain unlawful slack fill seem to be proliferating. They are increasingly being made within civil class action cases, on behalf of thousands or millions of individual consumers, rather than as enforcement actions by regulators. On behalf of packagers everywhere, please allow me to make this complex legal argument: Such accusations ain't really fair.

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